Does Probation For Profit Criminalize Poverty?

This is TELL ME MORE from NPR News. I'm Michel Martin. If you've ever been pulled over for speeding or a busted taillight, you know that what comes next can be annoying and expensive - a ticket, possibly a court date. Now if you can pay, you pay and you go on about your business. But what if you can't? Well, you could end up on probation, and that's what we want to talk about today. Across the country, probation services are being privatized meaning that for-profit companies are running them, and they can tack on all sorts of fees.

And now a new report says that too often, people who cannot pay end up behind bars. Chris Albin-Lackey is a senior researcher for Humans Rights Watch. He authored the report titled "Profiting From Probation: America's Offender-Funded Probation Industry." It looks at the privatization of probation in three states - Georgia, Alabama and Mississippi. And he's with us now. Chris, welcome. Thanks for joining us.

CHRIS ALBIN-LACKEY: Thanks for having me.

MARTIN: Also joining us is Atlanta Journal-Constitution reporter Rhonda Cook. She's reported on the private probation industry in Georgia - the state that has the most extensive private probation program. Rhonda Cook, welcome back to the program. Thanks for joining us also.

RHONDA COOK: Happy to be here.

MARTIN: So, Chris, explain to us how this works. As I understand it, we're generally talking about misdemeanor offenses.

ALBIN-LACKEY: Sure. Well, like you said, these are all misdemeanor offenses. A lot of them are just traffic offenses and other really minor crimes. In a lot of states, state-run probation services have stopped providing supervision in misdemeanor cases, and they're basically telling counties and municipalities to figure out how to deal with it themselves. And where the for-profit probation companies come in is they approach these counties and towns and they say to them, essentially, look, we'll do this for you, and we won't charge you a penny of taxpayer money. Instead, we'll supervise your probationers. We'll collect outstanding debts from people with traffic tickets and things like that.

And you include, as a part of people's sentences, a requirement that they pay us supervision fees, and in some cases, other kinds fees as well. And those supervision fees then become a part of what people owe. And the problem is that the longer it takes people to pay off their debt to the court, the longer they're on probation with these companies, the more debt they accumulate over time, and people can get locked up even when they've actually paid money in excess of what they were originally sentenced to in the first place, if they haven't paid everything that they owe these companies.

MARTIN: Rhonda, I want to hear from you on this. As the report points out, Georgia has the largest number of individuals being supervised by these private probation companies. I wanted to ask, you know, why is that? And tell us a little bit more about your reporting about who the people are who tend to be caught up in this.

COOK: Well, the law was changed in 2001, which is when the industry pretty much boomed here. And it's mostly owned and operated by former law enforcement officers, mostly probation officials, Department of Corrections. And it's a cash cow. And it has - there's been legislation pending here to make it even better for them because of the lawsuit that threatens their industry. And it's here just because people want offenders, even if they are jaywalkers or people turning right on red where they're not supposed to to be punished.

MARTIN: Chris, the report points out - as the Human Rights Watch report points out, it is unconstitutional to put someone in jail because they cannot afford to pay a ticket. So how is it that people can end up in jail for not being able to pay a fine or a fee?

ALBIN-LACKEY: Well, you know, all of this is happening at the very bottom rungs of the criminal justice system. It's traffic courts, municipal courts, county courts. People generally don't have lawyers. A lot of these cases are up in front of a judge and finished and disposed of in less than a minute. Most people are completely unaware that they have any right not to be locked up over money that they can't pay.

So in theory, courts or probation officers are supposed to sit down with people who say that they can't afford to pay and actually go through an objective financial analysis of their situation to see whether they have the money. If they can't, they have to find another solution. But what we see in a lot of cases is just that nobody is doing that. And the people on probation have no real way of complaining about it, and in many cases, don't even know that they're not supposed to be locked up over money they don't have.

MARTIN: Rhonda, why are the municipalities turning towards these private companies? I mean, do - and when you brought up this phenomenon up to the officials who presumably have some responsibility for this, what did they say? Did they think it's fair, do they think it's OK? And one of the other things I want to point out is you - I think you both pointed out that some offenders ended up paying more in fees to the probation company than they were sentenced in fines to begin with.

COOK: Well, first of all, they say that's not happening. Even though you point out examples where someone was jailed for $156 for 20 days, they say, oh, no, it's not that, they probably violated their probation in another way - sort of like denying the obvious. And that's just the way they do it. They think they can argue with you that it's not there. It did not happen, but it does happen.

MARTIN: They just don't believe the examples that you sighted?

COOK: That's correct. I talked with the state court judge who's head of their organization and she said it's very complicated, there are usually other conditions of probation, and they most likely didn't violate their probation by not paying a fee, it's because they stopped showing up. Well, some of them do stop showing up because they think they've resolved their issues with the courts. They think they've paid - they've paid their fines, and that was the only reason they were on probation so they stop paying the probation fee and then the probation company seeks a warrant for their arrest.

MARTIN: And there's no regulation of the amount of fees that people can be charged? There's no regulation or there's no cap on these fees?

COOK: They usually charge pretty much the same thing a month, which is anywhere from $35 to $45 a month, but there are add-on fees. And then they also collect for electronic monitoring, which the judge may or may not have ordered. They charge for alcohol and drug abuse programs or testing, which the judge may or may not have been ordered. And they do this because these people are afraid they're going to jail and they don't completely understand the system.

MARTIN: So one of these companies technically could - you were stopped, say, for a busted tail light - one of these probation companies could just decide that you should have electronic monitoring, even if the judge didn't order that you have electronic monitoring and charge you for that?

COOK: There was an example of a case in Augusta, Georgia where the sentencing judge clearly did not check electronic monitoring, but yet you look on the tabs for what they're having to pay and you see that there are bills for electronic monitoring. And they do it because they are threatened with jail. It's just that simple.

MARTIN: And when you talked to the companies about this, what did they say?

COOK: They say they do only what the courts tell them to do. Again, it's a case of them denying the stuff that's there.

MARTIN: Chris, can you tell me the story of Tom Barrett?

ALBIN-LACKEY: Yeah, Tom is a great example of how badly wrong all of this can go. Tom Barrett lives in Augusta, Georgia. At the time, he was arrested for stealing one can of beer from a convenience store. He's a guy who's struggling with addiction. He was pretty much destitute, living totally off of food stamps. The only cash income he ever got was from selling his blood plasma a couple of times a week whenever he was healthy enough to do it. He got caught stealing this can of beer. He pled guilty to shoplifting. The judge sentenced him to a $200 fine and put him on 12 months' probation with a company. He was required to wear an ankle bracelet that would monitor whether he drank alcohol. That was going to be billed to him at a cost of $12 a day or $360 a month, which was much more money than he actually made in a month.

So after spending a few - over a month in jail just because he didn't have the start-up fee to get this thing put on his ankle in the first place, he finally got out. And he tried to throw as much money as he could onto his probation fees. He was skipping meals. He was going without basic household necessities, but he still just kept falling further and further behind. Within six months, he was a thousand dollars in debt to his probation company with fees he hadn't pay. And his probation officer just kept telling him that he was going to get locked up if he fell to far behind. One day he went in to meet with his probation officer, turned around and there was a police officer standing in the doorway of the guy's office, and they hauled him off to jail.

MARTIN: How did that all wind up? I mean, is he still in debt at this moment or - what happened?

ALBIN-LACKEY: Tom's lucky in that his case was discovered by an attorney in Augusta - who's been creating a lot of headaches for the industry - who took up Tom's case and is actually using it in a series of legal challenges that he's filing against the way this company is operating around Augusta.

MARTIN: If you're just joining us, I'm speaking with Chris Albin-Lackey of Human Rights Watch and Rhonda Cook of the Atlanta Journal-Constitution. We're talking about their reporting on the privatization of probation services. They're telling us that people - because of this that sometimes people are being charged more in fees than the original fines. And sometimes people are actually ending up in jail as a consequence of this. So, Chris, could you just walk me through, again, how then - again, I still am not getting it. How can you then be sent to jail because you didn't pay a fine that you couldn't afford to pay to begin with?

ALBIN-LACKEY: Well, it's unconstitutional, but it's happening every day. And the reason is that nobody's making a serious effort to find out whether people can pay or not. A lot of people, when they walk into the office of their probation company and they sit down with their probation officer and they say I'm falling behind, I can't keep up with all of these payments, their probation officer says, well, you have to keep up.

And if you don't come up with this much money by the end of the month, you're going to go to jail. In essence, what the probation companies and the courts are doing is they're just treating everyone as though they're lying when they say that they can't pay.

MARTIN: Why is there a tolerance for this? Where did that come from?

ALBIN-LACKEY: Well, I think there's a much broader trend towards trying to shift costs related to the court system onto the backs of the people who get pushed through the court systems. I think a lot of the tolerance for these problems in particular is really just explained by the fact that really nobody knows that this is going on. Like I said...

COOK: When...

MARTIN: Go-ahead Rhonda.

COOK: I wanted to point out something. They argue - while they argue that this is at no cost to the taxpayer, it is when these people are arrested and taken to jail. There's one woman who was arrested 'cause she owed $156. And she was held in jail for 20 days - excuse me. And you multiply that times $50 a day plus her health cost, it is costing the taxpayers.

MARTIN: Chris, are the places where this is going on mainly in the south? I mean, we only talked about - we've mainly talked about Georgia, which is, as you pointed out and as Rhonda's pointed out, has the largest number of people under these private probation service programs. Are they overwhelmingly in the South? Are they mainly in the South? Or where else are they?

ALBIN-LACKEY: There are at least a dozen states that allow this at this point. And they're scattered a bit. Montana and Utah and Michigan allow it. And other states that are not in the South. But it is overwhelmingly concentrated in the south, especially in terms of numbers. There's no state that comes close to Georgia, Florida and maybe Alabama in terms of numbers. And then maybe other big states are probably Mississippi and Tennessee.

MARTIN: Chris Albin-Lackey is a senior researcher for Human Rights Watch. He joined us from our studios in New York. Rhonda Cook is a reporter for the Atlanta Journal-Constitution. She joined us from Atlanta. Thank you both so much for speaking with us.